UCLA UCLA Journal of Environmental Law and Policy Title Downsizing National Monuments: The Current Debate and Lessons From History Permalink https://escholarship.org/uc/item/9258s4dm Journal UCLA Journal of Environmental Law and Policy, 38(1) Author Horton, Grant Publication Date 2020 DOI 10.5070/L5381047120 eScholarship.org Powered by the California Digital Library University of California Downsizing National Monuments: The Current Debate and Lessons From History Grant Horton Table of Contents Introduction ........................................................................................................ 79 I. Challenges to National Monument Designations and the Current Legal Debate .............................................................. 84 A. National Monument Designations: A History of Presidential Discretion .............................................................................................. 84 B. National Monument Reductions: The Current Debate...................... 88 II. Expanding Judicial Review: Courts Should Look to how Congress and the President Have Been Treated Historically in the Property Clause Context ..................................... 94 A. Courts Have Consistently Interpreted Congress’s Powers in the Property Clause Context Broadly ............................................. 96 B. Courts Have More Rigorously Questioned and Challenged the President’s Powers in the Property Clause Context ..................... 98 III. Applying the History of the Property Clause to Reducing National Monuments .............................................................................. 102 Introduction Since the day he was sworn into office as the forty-fifth president of the United States, President Donald Trump has ignited fierce and daily con- troversy. Many of the president’s statements, such as his comments about undocumented immigrants and white supremacists, have alarmed people and enflamed passions across the country. Other statements made by Presi- dent Trump, such as his twitter tirades about voter fraud, media bias, and the impeachment process, have threatened to undermine the public’s faith in our country’s democratic institutions. Yet, President Trump’s actions are likely to have even more significant and lasting impacts than his rhetoric. Some of the president’s most recent and controversial actions—like his declaration of a National Emergency to secure funds to build a wall on the country’s southern border—have revived longstanding debates about presidential power and fed- eral management of public lands.1 1. See Charlie Savage and Robert Pear, 16 States Sue to Stop Trump’s Use of Emergency Powers to Build Border Wall, N.Y. Times (Feb. 18, 2019), https://www.nytimes.com/2019/02/18/ © 2020 Grant Horton 79 79 80 JOURNAL OF ENVIRONMENTAL LAW V38:1 One of the most publicized and controversial actions President Trump has taken with respect to federal public lands since assuming office involves the reduction of national monuments. During the 2016 presidential campaign, Trump promised repeatedly to undo various actions by President Barack Obama and to open up more federal lands to oil and gas production.2 On April 26, 2017, President Trump took the first step toward fulfilling these prom- ises by issuing Executive Order 13792, titled “Review of Designations Under the Antiquities Act.”3 The order directed the Secretary of the Interior to con- duct a review of all national monuments designated since 1996 that covered at least 100,000 acres and to provide a report to the president with recom- mendations for reductions to any monuments the Secretary deemed as not “made in accordance with the requirements and original objectives” of the Antiquities Act.4 The order also empowered the Secretary of the Interior to review and make recommendations regarding any national monuments estab- lished since 1996 for which “the Secretary determines that the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders.”5 The order singled out Bears Ears—a national mon- ument established by President Obama covering about 1.35 million acres in Utah—as one of the first national monuments to be considered for reduction.6 On June 10, 2017, after holding a four-day listening tour in Utah to hear from community representatives, former Secretary of the Interior Ryan Zinke submitted an interim report to the president recommending that Trump declare significant reductions to Bears Ears National Monument.7 President Trump us/politics/national-emergency-lawsuits-trump.html [https://perma.cc/9VUT-ACV9]. After President Trump declared a National Emergency on February 15, 2019 in an attempt to divert $3.6 billion in military construction funds for his proposed border wall, a coalition of 16 states including California and New York challenged the president’s actions in court. Id. The states claim the president overstepped his constitutional authority by circumvent- ing Congress. Id.; see also Michael Tackett, Trump Issues First Veto After Congress Rejects Border Emergency, N.Y. Times (Mar. 15, 2019), https://www.nytimes.com/2019/03/15/us/ politics/trump-veto-national-emergency.html [https://perma.cc/JU4T-QTXA] (discussing President Trump’s veto of a Senate resolution which attempted to overturn the diversion of funds for the border wall). 2. See Noah Bierman, Donald Trump Promises To “Lift The Restrictions on American Energy” in Appeal to Fracking Industry, L.A. Times (Sept. 22, 2016), https://www.latimes.com/ politics/la-fi-trump-fracking-20160922-snap-story.html [https://perma.cc/HU6N-YTD5]. 3. Exec. Order No. 13,792, 82 Fed. Reg. 20,429 (Apr. 26, 2017). 4. Id.; see also 54 U.S.C. § 32030 et seq. (2012). The language used in the Antiquities Act describes the Act’s requirements and objectives broadly, allowing the president to des- ignate “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” on public lands as national monuments, though facially requiring that these designations be limited in size to the “smallest area compatible” with proper manage- ment of the objects to be protected. See infra notes 27–28 and accompanying text. 5. Exec. Order No. 13,792, 82 Fed. Reg. 20,429. 6. Id. 7. Memorandum from Ryan K. Zinke, Sec’y of the Interior, to President Donald Trump, Interim Report Pursuant to Executive Order 13,792 (June 10, 2017), https://www.doi. 2020 DownsiZING National MONUMENTS 81 subsequently issued two proclamations on December 4, 2017, which downsized Bears Ears by 85 percent8 and Grand Staircase-Escalante by about 46 percent.9 The president justified the reductions in both proclamations by claiming that many of the protected objects at Bears Ears and Grand Staircase-Escalante are “not unique to the monument[s]” and are “not of significant scientific or historic interest.”10 Both proclamations also stated that many of the objects at Bears Ears and Grand Staircase-Escalante are “not under threat of damage or destruction such that they require a reservation of land to protect them.”11 The reductions of both national monuments went into effect on February 2, 2018.12 Former Secretary Zinke issued his final report on December 5, 2017, the day after President Trump announced the reductions to Bears Ears and Grand Staircase-Escalante.13 In his report, Zinke reviewed a total of 27 national mon- uments designated under the Antiquities Act since 1996.14 Zinke solicited public comment during his review, and admitted in his report that “[c]omments received were overwhelmingly in favor of maintaining existing monuments.”15 The Secretary nevertheless recommended changes to a number of national monuments “to protect traditional multiple use” and dismissed the comments of those opposing the changes as merely “demonstrat[ing] a well-orchestrated national campaign organized by multiple organizations.”16 In addition to the gov/sites/doi.gov/files/uploads/final_interim_report_about_monuments.pdf [https://perma. cc/B2L9-4P34]; see also Press Release, U.S. Dep’t of the Interior, Secretary Zinke Submits 45-Day Interim Report on Bears Ears National Monument and Extends Public Comment Period (June 12, 2017), https://www.doi.gov/pressreleases/secretary-zinke-submits-45-day- interim-report-bears-ears-national-monument-and-extends [https://perma.cc/JDE4-7HGE]. 8. Proclamation No. 9681, 82 Fed. Reg. 58,081 (Dec. 4, 2017). 9. Proclamation No. 9682, 82 Fed. Reg. 58,089 (Dec. 4, 2017); see also Juliet Eilperin, Zinke Backs Shrinking of More National Monuments and Shifting Management of 10, Wash. Post (Dec. 5, 2017), https://www.washingtonpost.com/national/health- science/zinke- backs-shrinking-more-national-monuments-shifting-management-of-10- others/2017/12/05/ e116344e-d9e5-11e7-b1a8-62589434a581_story.html?utm_term=.b430ddbc597f [https:// perma.cc/WDE3-FPQ2]. 10. Proclamation No. 9681, 82 Fed. Reg. 58,081; Proclamation No. 9682, 82 Fed. Reg. 58,089. 11. Id. 12. See Hannah Nordhaus, What Trump’s Shrinking of National Monuments Actually Means, Nat’l Geographic (Feb. 2, 2018), https://news.nationalgeographic.com/2017/12/ trump-shrinks-bears-ears-grand-staircase-escalante-national-monuments [https://perma. cc/8V76-8BMK]. 13. Memorandum from Ryan K. Zinke, Sec’y of the Interior, to President Donald Trump, Final Report Summarizing Findings of the Review of Designations Under the Antiquities Act (Dec. 5, 2017), https://www.doi.gov/sites/doi.gov/files/uploads/revised_final_ report.pdf [https://perma.cc/2DWQ-FRM3]. Zinke’s review included national